How To Avoid A Judges Verbal Beating-Subpoenas

A subpoena for production of documents is a direct command from the court. If you don’t produce the documents you can be arrested, verbally beaten up by a judge and jailed. “Contempt of court” gets judges so cranky that it takes the heat off the rest of us. Unless you are looking for material for a book or otherwise have a few days/weeks to kill, just comply with the subpoena.

Is it easy for a lawyer to issue a subpoena? Very easy. Although getting the spelling right can be a challenge.

But what if you are asked to produce your trade secrets? Or your therapist or doctor is ordered to hand over their notes which reveal you have haemorrhoids?

Then you fight.

Here are four questions to ask :

1. Is the “subpoena” from the court? A lawyer’s letters or telephone calls can be ignored. Also, the documents need only be produced to the court itself.
2. Has the lawyer serving the subpoena provided adequate funds to cover your expenses travelling to the court? If not, you do not need to go. There should be cash or a cheque accompanying the subpoena.
3.Does the subpoena specify a return date which gives you reasonable notice to produce the documents in court e.g. seven days?
4. Is the request too vague? If so, you can object and the lawyer may decide to limit their request to request to documents that you are comfortable supplying.

If you cannot deter the lawyer from enforcing the subpoena then you must attend court. However, you can put the documents in a sealed envelope, go to court, and explain to the judge on oath your objection that it is:

1. Not relevant; and/or

2. Unduly burdensome due to expense, or otherwise an abuse of process.

If it is haemorrhoids, then you will find the judge very knowledgeable and sympathetic. If it is something else, like an affair, then the judge may want to go into a little more detail. Regrettably, your privacy or confidentiality is not a reason to refuse to produce documents. But judges may order that the documents be used in a way that saves your face.

Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes"